Plumer v . Cunningham CV-99-022-JD 03/21/00
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Joseph W . Plumer
v. Civil N o . 99-022-JD
Opinion N o . 2000 DNH 071
Michael J. Cunningham, Warden,
New Hampshire State Prison
O R D E R
Joseph W . Plumer, proceeding pro s e , seeks habeas corpus
relief pursuant to 28 U.S.C.A. § 2254 from his incarceration on
sentences imposed after he violated the terms of his probation,
which was imposed after he pled guilty to charges of kidnaping,
burglary, and sexual assault. The petitioner raises as grounds
for relief the ineffective assistance of his counsel with respect
to his guilty plea and the probation violation proceeding and
denial of due process in the plea and sentencing proceeding, the
terms of his probation, and the sentence imposed for violation of
probation. The respondent moves for summary judgment on all of
the petitioner’s claims.
Background
A young child was kidnaped and sexually assaulted in August
of 1985 in Derry, New Hampshire. The petitioner was investigated
in connection with the crime, but was not immediately charged,
and moved to Florida. After DNA tests were done in 1991, the
petitioner was brought back to New Hampshire and was charged with
kidnaping and burglary felonies and sexual assault misdemeanors.
The state’s prosecution of the petitioner on the charges twice
resulted in mistrials due to deadlocked juries.
The third trial was scheduled for March of 1993. Shortly
before trial, the state offered a plea agreement in which the
petitioner would plead guilty and would receive suspended
sentences, with time already served. The state then added
probation with required conditions such as participation in a
sexual offender program and alcohol restrictions. The petitioner
told his counsel that he objected to the terms of the probation
in the offer. On the Friday before the trial was scheduled to
begin the next Monday, March 2 9 , 1993, the petitioner agreed to
accept the state’s offer with two years of probation.
Over the weekend before the plea and sentencing proceeding
was to be held, the petitioner decided he did not want to plead
guilty and instead wanted to proceed to trial. When he arrived
at the court on the morning of March 2 9 , 1993, the petitioner
told his counsel that he no longer wanted to plead guilty. They
discussed the matter for several hours, including several heated
exchanges.
Because the petitioner had decided that he objected to
2
probation, his counsel tried to negotiate probation terms that
the petitioner would not find objectionable. After further
discussions, the petitioner agreed to plead guilty and to accept
a probation period of two years with certain conditions. On
March 2 9 , 1993, the petitioner pled guilty and received a
suspended sentence with probation. The terms of his probation
prevented him from contacting certain people and allowed him to
have a thirty-day travel permit to seek employment and housing in
another jurisdiction. The petitioner was released, on probation,
on the date of his guilty plea.
Within a week of the guilty plea and sentencing, the
petitioner objected to the terms of his probation, which included
conditions that were not in the plea agreement. The petitioner
contacted his counsel and instructed him to move to withdraw the
guilty plea. As a preliminary step, the petitioner’s counsel
moved to clarify the sentence seeking to vacate the intensive
probationary status that had been imposed on the petitioner,
which was the reason for the extra probation conditions. The
court granted the motion and ordered that the petitioner be
placed on probation under ordinary terms. Counsel did not move
to vacate the plea.
The petitioner continued to believe that the terms of his
probation were excessive and more intensive than the terms to
3
which he had agreed in the plea agreement. In particular, he
objected to his probation officer’s insistence that he have a sex
offender counseling evaluation. Despite his objections, the
petitioner submitted to the evaluation after his counsel obtained
payment for the evaluation from the state.
In late November of 1993, the petitioner went to Maine with
a friend for the weekend. The car broke down during the trip,
and the petitioner was arrested by a Maine State Trooper when he
admitted to being on probation in New Hampshire and the trooper
noticed that he appeared to be intoxicated. The petitioner’s
blood alcohol level was measured at .24 in a breathalyzer test.
In the course of the trip, the petitioner also missed a meeting
he had scheduled with his probation officer.
On November 2 3 , 1993, a violation of probation was filed
against the petitioner, charging him with failing to report to
his probation officer at the designated time, failing to obtain
permission before leaving the state, and failing to refrain from
the use of alcohol. A hearing was held on the probation
violation on December 2 9 , 1993. The petitioner told his counsel
that he wanted to fight the violations and withdraw his guilty
plea, but after extensive discussions, he entered a plea of true
to the charged violations. He was sentenced to seven and onehalf to fifteen years with a disciplinary period added to the
4
minimum sentence. That sentence was later vacated in response to
a motion by the petitioner’s counsel, and the petitioner was
resentenced on March 1 8 , 1994, to seven and one half to fifteen
years on the kidnaping charge and three and a half to seven years
on the burglary charge to run concurrently.
In May of 1995, the petitioner, proceeding pro s e , filed a
petition for a writ of habeas corpus in state court, raising the
same issues that are raised in his petition to this court. A
hearing on the petition was held on May 2 8 , 1997, in which the
petitioner was represented by new counsel. The petitioner’s
previous counsel appeared and testified as did the petitioner.
The petitioner’s probation officer testified for the state.
The state court judge, McHugh, J., who presided at the
petitioner’s plea and sentencing proceeding and probation
revocation proceeding, also heard his petition for habeas relief.
After the hearing, the court issued an order denying habeas
relief. The court denied the petitioner’s motion for
reconsideration, and the New Hampshire Supreme Court declined the
appeal.
Discussion
The respondent moves for summary judgment, contending that
the state court properly applied legal standards consonant with
5
federal law and that the state court’s decisions were based upon
correct factual findings. Summary judgment is appropriate in a
habeas proceeding, as in other cases, when “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c).
The petitioner raises several procedural objections to
summary judgment. He contends that the factual findings made by
the state court judge in his state habeas proceeding are not
entitled to a presumption of correctness under § 2254(e) because
he did not receive a fair hearing on his habeas claims. The
petitioner primarily argues that Judge McHugh was not impartial,
but he also says, without any support in the record, that the
merits of his claims were not resolved in the state court
proceedings, that the factfinding procedures were inadequate, and
that material facts were not adequately developed there. To the
extent the petitioner is seeking a hearing in this court on his
habeas petition, he has not made the requisite showing. See §
2254(d)(2).
The petitioner argues that Judge McHugh was not impartial
since he presided at the petitioner’s guilty plea and sentencing
6
proceeding and probation revocation proceeding before also
presiding on his state habeas petition. The petitioner also
objects to the respondent’s failure to provide him with evidence
from his two criminal trials, on the same charges, and his
probation record.
The petitioner contends that bias may be presumed because
Judge McHugh would not want to expose his own and others’
mistakes or misconduct in the prior proceedings. To prove his
claim of bias, the petitioner must overcome the presumption of
judicial impartiality by showing that Judge McHugh had an actual
bias against him or a substantial interest in the outcome of the
habeas proceeding. See Bracy v . Gramley, 520 U.S. 899, 904-05
(1997); Withrow v . Larkin,
421 U.S. 3 5 , 55 (1975); New York State
Dairy Foods, Inc. v . Northeast Dairy Compact Comm’n,
198 F.3d 1 ,
13 (1st Cir. 1999). The record does not show that Judge McHugh
had any bias against the petitioner or any improper interest in
the outcome of the case. The speculative basis for bias offered
by the petitioner is an insufficient basis to overcome the
presumption of judicial honesty and integrity.1 See, e.g.,
1
Judge McHugh’s statements at the probation revocation
hearing that justice was not done when the petitioner was given
suspended sentences on the serious charges against him do not
indicate prejudice, but instead reflect the court’s view of the
circumstances relevant to what sentence should be imposed after a
7
Brooks v . New Hampshire Supreme Court, 80 F.3d 633, 640 (1st Cir.
1996). Therefore, the petitioner has not demonstrated that Judge
McHugh was biased in the habeas proceeding. As a result, the
petitioner cannot rely on allegations of bias to overcome the
presumption of correctness that is to be afforded the state
court’s findings under § 2254(e). See also Armstead v . Scott,
37
F.3d 202, 208 (5th Cir. 1994) (affording presumption of
correctness to findings made by judge who presided over trial and
state habeas proceeding).
The petitioner again seeks discovery from the respondent
that has previously been denied. Discovery is available in
habeas proceedings pursuant to the Federal Rules of Civil
Procedure “‘if, and to the extent that, the judge in the exercise
of his discretion and for good cause shown grants leave to do s o ,
but not otherwise.’” Bracy, 520 U.S. at 904 (quoting Rule 6(a)
of the Rules Governing § 2254 Cases). As the court previously
explained, see order of November 1 0 , 1999, at page 4 , the
petitioner cannot challenge a voluntary and intelligent guilty
plea made with the advice of competent counsel, and therefore,
evidence of his guilt or innocence is not relevant to his habeas
claims. His claim for purposes of his habeas petition therefore
violation of probation.
8
must focus on whether or not his plea was voluntarily and
intelligently made with the advice of competent counsel.
Instead, the petitioner seeks evidence from the trials to
show that someone else committed the crimes to which he pled
guilty. Similarly, with respect to the petitioner’s probation
record, the issue is whether he entered a voluntary and
intelligent plea of true to the probation violations charged, not
the underlying circumstances that led to the violations.
Therefore, the court in its discretion determines that the
petitioner has not shown good cause for the discovery requested.
The court proceeds to the merits of the petitioner’s claims in
support of habeas relief.
A petition for a writ of habeas corpus will not be granted
unless the adjudication of the claim in the state court
proceeding:
(1) resulted in a decision that was contrary t o , or
involved an unreasonable application o f , clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C.A. § 2254(d). Review of the legal standard used in the
state court adjudication, the first consideration, requires a
two-step analysis in which the court first asks whether the
9
Supreme Court has provided a rule of law governing the claim at
issue.2 See O’Brien v . Dubois, 145 F.3d 1 6 , 24 (1st Cir. 1998).
If a clearly established rule is found, the court decides whether
the state court’s decision was contrary to the rule; if not, the
court moves to the second step.3 See id.; see also Vieux v .
Pepe,
184 F.3d 5 9 , 64 (1st Cir. 1999) (explaining that both steps
are necessary unless the ruling was contrary to the rule). At
the second step, the court determines whether the state court’s
decision constituted an unreasonable application of Supreme Court
precedent. See O’Brien,
145 F.3d at 2 4 , Vieux, 184 F.3d at 6 4 .
In a habeas proceeding pursuant to § 2254, a factual
determination made by the state court is presumed to be correct
and the petitioner bears the burden of rebutting the presumption
by clear and convincing evidence. See § 2254(e). For purposes
of § 2254(e) “factual issues are defined as basic, primary, or
historical facts: facts in the sense of a recital of external
2
The state law grounds raised by the petitioner in support
of his claims for habeas relief are not cognizable in the context
of § 2254. See, e.g., Lewis v . Jeffers, 497 U.S. 764, 783
(1990).
3
Unfortunately, the respondent largely ignored the state
court’s legal analysis, which is to be reviewed under §
2254(d)(1). See, e.g., Coombs, 202 F.3d at 1 8 . Instead, the
respondent mistakenly urged the court to defer to the state
court’s legal determinations. See O’Brien, 145 F.3d at 21-22.
10
events and the credibility of their narrators.” Coombs v . Maine,
202 F.3d 1 4 , 1 8 , (1st Cir. 2000) (internal quotations omitted).
A. Ineffective Assistance of Counsel
The first four of the petitioner’s claims assert ineffective
assistance of counsel, which is addressed in Strickland v .
Washington, 466 U.S. 668 (1984). The Strickland test requires
claimants to prove that counsel’s performance was both deficient
and prejudiced his case. See Strickland,
466 U.S. at 687; accord
Roe v . Flores-Ortega, ___ S . C t . ___,
2000 WL 201148 at *5 (U.S.
Feb. 2 3 , 2000). Deficient performance is representation “that
falls below ‘an objective standard of reasonableness’ under
prevailing professional norms when considering all the
circumstances.” Matthews v . Rakiey,
54 F.3d 908, 924-35 (1st
Cir. 1995) (quoting Strickland,
466 U.S. at 6 8 8 ) . Counsel’s
performance is to be evaluated by a highly deferential standard
in light of the circumstances that existed in the case at the
time of counsel’s conduct. See Roe, ___ S . C t . at ___,
2000 WL
201148 at * 5 . Prejudice “in this context means ‘a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’” Prou v .
United States,
199 F.3d 3 7 , 48-49 (1st Cir. 1999) (quoting
Strickland,
466 U.S. at 4 9 4 ) .
11
The Strickland test for ineffective assistance of counsel
has been determined to be one of the clearly established federal
rules that permit analysis under the “contrary to” prong of §
2254(d)(1). See O’Brien, 145 F.3d at 25 & n.6. Therefore, the
court first examines the state court’s analysis of the
petitioner’s ineffective assistance of counsel claims in the
state habeas proceeding to determine whether or not that
adjudication was contrary to the Strickland standard. If the
state court’s adjudication is not contrary to the Strickland
standard, this court must then determine whether the adjudication
was an unreasonable application of that standard. See Vieux, 184
F.3d at 6 4 .
1. Guilty plea.
The Strickland standard is also applicable to counsel’s
performance in the context of a guilty plea. See Hill v .
Lockhart, 474 U.S. 5 2 , 58 (1985). To prevail, the petitioner
must show that his counsel’s performance fell below an objective
standard of reasonableness and that “but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to
trial.”
Id. at 5 7 , 5 9 ; accord United States v . Gonzalez,
202
F.3d 2 0 , 25 (1st Cir. 2000).
The petitioner contends that his counsel was ineffective in
12
representing him in the plea and sentencing proceeding because he
persuaded him to plead guilty despite his proclaimed innocence,
because he failed to move for a Sarette hearing,4 and because he
gave him erroneous information and bad legal advice to plead
guilty. More particularly, he contends that his counsel should
have allowed him to withdraw from the plea agreement and go to
trial, but instead, the petitioner alleges, his counsel badgered
him and coerced him into the guilty plea. He argues that his
counsel operated as an agent for the state instead of acting in
his client’s best interest. The petitioner asserts that he did
not want to plead guilty to crimes he did not commit if his
sentence would include probation.
In his order denying the petitioner’s state habeas corpus
petition, Judge McHugh evaluated the reasonableness of the
petitioner’s counsel’s actions and advice in the context of the
plea agreement and the guilty plea. Although the court did not
explicitly articulate the legal standard it applied in
considering the petitioner’s grounds for habeas relief, the
4
Under New Hampshire state law, a Sarette hearing is held on
a defendant’s motion to withdraw a guilty plea, before sentence
is imposed, to determine whether it would be fair and just to
allow withdrawal of the plea. See State v . Sarette, 134 N.H. 133
(1991).
13
standard is apparent from the analysis used.5
Judge McHugh found that the initial plea negotiations did
not include a period of probation, but that the petitioner became
aware that probation would be a part of the agreement within a
week of the scheduled trial date. The petitioner understood what
probation entailed because he had served a term of probation as
part of another conviction. Although the petitioner initially
agreed to the plea offer, including probation, he changed his
mind and told his counsel on the morning of the hearing that he
did not want to plead guilty if probation were part of the
sentence.
Counsel then spent three to four hours attempting to resolve
the petitioner’s objections to the plea agreement. The
petitioner finally agreed to plead guilty with a probation period
of two years with special conditions to permit him to travel out
of state and forbidding contact with certain people. Judge
McHugh concluded, “The Court cannot fault Attorney Rothstein for
approaching the problem in the fashion he did, given the
5
While the petitioner accurately notes that Judge McHugh did
not cite legal authority in support of his analysis, that
omission does not necessarily affect the validity of the decision
as long as “the state court generally articulates and applies
tenets that can reasonably sustain its judgment.” Bui v .
DiPaolo, 170 F.3d 232, 243 (1st Cir. 1999).
14
potential benefit to M r . Plumer of him entering a no-time plea to
these most serious charges.” State Court Habeas Corpus Order,
91-S-1831, 92-S-1280, at 5 , June 9, 1997. Judge McHugh found no
evidence that the petitioner lacked an understanding that
probation would be part of his sentence or that his counsel
improperly induced him to enter the plea, finding that the
petitioner “does not suggest that he entered his plea without
understanding that probation would be a component of sentencing,
nor did he testify that Attorney Rothstein coerced, manipulated
or tricked him into entering a plea.” Id. at 6. In fact, the
petitioner testified at his plea and sentencing proceeding that
he was satisfied with his counsel’s representation. See Plea and
Sentencing transcript at 7 .
Judge McHugh also found that the petitioner had a great deal
to lose by going to trial and that the negotiated agreement with
suspended sentences and probation was very favorable to him. The
judge held, “Recognizing the potential risk of trial and
recognizing the favorable aspects of the State’s plea offer, it
was certainly in the best interests of the plaintiff to have
Attorney Rothstein fully explore a plea rather than to throw up
his hands and demand a trial simply because M r . Plumer did not
like the possibility of potentially onerous probation
conditions.” Id. at 5-6. Judge McHugh concluded that the
15
petitioner pled guilty “with full knowledge and acceptance of the
negotiated sentence received” and also that he had the benefit of
competent counsel during the proceeding.6 Id. at 6, 12-13.
Judge McHugh’s analysis follows the Strickland-Hill standard
by examining the reasonableness of counsel’s performance and any
prejudice that might have resulted to the petitioner. The state
court’s conclusion that the petitioner did not receive
ineffective assistance of counsel was not contrary to wellestablished federal law. The state court’s factual findings are
presumed to be correct unless the petitioner rebuts the
presumption by clear and convincing evidence. See § 2254(e)(1).
The petitioner has not carried the burden of rebutting the state
court’s factual findings, and a review of the transcripts of the
state court proceedings, included in the record, does not show
that the state court’s findings were unreasonable based upon the
evidence of record. The state court’s factual findings support
the determination that the petitioner’s counsel’s representation
of the petitioner during the plea and sentencing proceeding was
reasonable. Therefore, the state court’s adjudication of the
petitioner’s claims asserting ineffective assistance of counsel
6
Judge McHugh also concluded that, “From all of the evidence
submitted to the Court, it is clear that the real dispute in this
case is not whether the plaintiff wanted to vacate his plea of
guilty, but rather it is in determining what particular
conditions of probation the plaintiff was to be placed under.”
State Habeas Order at 6-7.
16
at his plea and sentencing proceeding was neither contrary to nor
an unreasonable application of federal law as determined by the
Supreme Court. See O’Brien, 145 F.3d at 25 (“the state court
decision must be so offensive to existing precedent, so devoid of
record support, or so arbitrary, as to indicate that it is
outside the universe of plausible, credible outcomes”).
No genuine issue remains to be decided with respect to the
petitioner’s ineffective assistance of counsel claims pertaining
to his plea and sentencing proceeding. Summary judgment is
appropriate in the respondent’s favor as to those claims for
habeas relief.
2. Probation revocation.
The petitioner also claims ineffective assistance of counsel
with respect to his counsel’s representation during the probation
violation proceeding. The petitioner contends that his counsel’s
advice to plead true to the charged probation violations was
constitutionally ineffective, and that his counsel should have
presented a defense to the charged violations. The Strickland
standard also governs a review of counsel’s performance during a
revocation proceeding.7 See, e.g., United States v . Allen, 157
7
The respondent does not dispute the petitioner’s
constitutional right to counsel during the probation revocation
proceeding. See Gagnon v . Scarpelli, 411 U.S. 778, 790 (1973);
United States v . Yancey,
827 F.2d 8 3 , 89 (7th Cir. 1987).
17
F.3d 661, 666 (9th Cir. 1998).
The petitioner was charged with three probation violations:
missing a meeting with his probation officer, drinking alcohol,
and leaving the state without permission, all of which occurred
during his trip to Maine. The petitioner argues that his counsel
should have moved to withdraw his plea or should have challenged
the charged probation violations on the ground that the imposed
intensive terms of his probation were contrary to his sentence of
“regular” probation. In particular, the petitioner contends that
the condition that he abstain entirely from alcohol was more
intensive than the usual provision that a probationer not use
alcohol to excess, and that although his sentence did not require
participation in a sexual offender program, his probation officer
did require evaluation. He also contends that his sentence would
have allowed him to relocate in another state but that the terms
of intensive probation prevented relocation.
The state court found, however, that “[t]he violation that
has resulted in him serving a severe sentence was not on one
specialized condition of intensive probation, but was rather
three separate violations of what can be said to be regular and
minimal probation terms.” State Habeas Order at 1 1 . The
petitioner admitted at the state habeas hearing that because his
blood alcohol level was measured at .24 when he was arrested in
Maine, he had been drinking to excess which would have violated
18
even a “regular” probation condition. He also admitted that he
knew that a condition of “regular” probation was that he not
leave the state without permission.
The state court found that there was no doubt that the
petitioner understood his right to contest the charged probation
violations. See State Habeas Order at 1 2 . The court also found
that the petitioner “had the benefit of competent counsel
throughout these proceedings,” that his counsel always acted in
his best interests, and that the petitioner’s plea of true to the
charged probation violations was “knowingly and intelligently
made with full knowledge of all consequences.” Id. at 12-13.
The state court’s adjudication of the issue of the
effectiveness of the petitioner’s counsel at the probation
revocation proceeding was neither contrary to nor an unreasonable
application of the Strickland standard. In addition, the
petitioner has not presented clear and convincing evidence that
the state court’s factual findings were not correct, and the
record evidence, including the transcripts, supports the state
court’s factual findings. Therefore, no factual issue remains to
be decided with respect to the petitioner’s claim of ineffective
assistance during his probation revocation proceeding.
B. Due Process
The petitioner’s remaining five claims in support of habeas
19
relief allege violations of his right to due process in his plea
and sentencing proceeding, the state court’s handling of his
probation sentence, and the sentence imposed for his probation
violations.
1. Guilty plea.
Two of the petitioner’s due process claims arise from the
circumstances of his guilty plea. The petitioner contends that
his due process rights were violated because the state court did
not order a Sarette hearing to inquire into whether fair and just
cause existed to allow him to withdraw his guilty plea and
because “the [state] Court accepted his plea of guilty without
first ensuring that this plea was made voluntarily, knowingly and
intelligently.” See Statement of Questions Presented, ¶¶ 5 , 6.
The petitioner argues that he was coerced by his counsel to
accept the guilty plea, despite his professed innocence and
desire to stand trial. He contends that the state court was
aware of his change of heart with respect to the guilty plea and
should have surmised that his plea was involuntary because he
entered the plea after four hours of discussions with his
counsel.
The petitioner’s claim that the state court should have
required a Sarette hearing raises a state law claim, not
actionable under § 2254, except to the extent that the claim in
20
essence challenges the constitutional validity of the
petitioner’s guilty plea.8 See, e.g., United States v . Avellino,
136 F.3d 249, 261 (2d Cir. 1998) (discussing scope of “fair and
just reason” to withdraw a guilty plea to include grounds of
constitutional and nonconstitutional dimension). Therefore, both
of the petitioner’s claims pertaining to the guilty plea and
sentencing proceeding are interpreted to challenge the
constitutional validity of his plea.
The due process requirements for a guilty plea are well
established in Supreme Court precedent. “[D]ue process requires
that the defendant’s entry of a guilty plea be a voluntary,
knowing, and intelligent act, ‘done with sufficient awareness of
the relevant circumstances and likely consequences.’” United
States v . Noriega-Millan, 110 F.3d 162, 166 (1st Cir. 1998)
(quoting Brady v . United States,
397 U.S. 742, 748 (1970)); see
also Bousley v . United States,
523 U.S. 614, 618 (1998). A
guilty plea is involuntary if threats or promises to stop
improper harassment are used to coerce the plea. See Brady,
397
U.S. at 755. Other federal courts have interpreted the due
process voluntariness requirement to permit significant pressure
8
Under both federal and state law, a criminal defendant has
no absolute right to withdraw a guilty plea before sentencing,
but instead must show that it would be “fair and just” to
withdraw the plea. See United States v . Ribas-Dominicci, 50 F.3d
7 6 , 78 (1st Cir. 1995); Sarette,
134 N.H. at 137-38.
21
and strong urging from defense counsel in favor of a guilty plea.
22
See, e.g., Miles v . Dorsey, 61 F.3d 1459, 1470 (10th Cir. 1995)
(citing cases).
The petitioner did not establish that his counsel’s
performance was constitutionally deficient in the plea and
sentencing proceeding and for the same reasons, based on the same
record, he cannot establish that the state court judgment was
contrary to or an unreasonable application of the due process
requirements established in Brady. Judge McHugh thoroughly
inquired into the petitioner’s knowledge and understanding of his
right to go to trial on the charges and the consequences of his
guilty plea at the plea and sentencing proceeding and was
satisfied that the petitioner’s plea was made voluntarily,
intelligently, and knowingly. Judge McHugh then heard the
petitioner’s and his counsel’s testimony at the state habeas
proceeding addressing the voluntariness of his plea. In the
order on the state habeas petition, Judge McHugh explained that
the petitioner did not testify that his counsel coerced,
manipulated, or tricked him into pleading guilty. The court also
found that “[t]he record of the plea and sentencing reflects a
knowing, intelligent and free-willed entrance of a guilty plea
with full knowledge and acceptance of the negotiated sentence
received.” State Habeas order at 6. The court also wrote, “His
counsel was not ineffective and his pleas to both the initial
crimes and the probation violations were knowingly and
23
intelligently made with full knowledge of all consequences.” Id.
at 1 3 .
The state court’s determination of the voluntariness of the
petitioner’s plea is neither contrary to nor an unreasonable
application of federal law.9 See § 2254(d)(1). The state
court’s factual findings are entitled to a presumption of
correctness, see § 2254(e), and the state court’s decision to
deny habeas relief on the grounds of an involuntary plea was not,
in any case, an unreasonable determination of the facts based on
the record, see § 2254(d)(2). See also Blackledge v . Allison,
431 U.S. 6 3 , 74 (1977) (“Solemn declarations in open court carry
a strong presumption of verity.”). Therefore, the respondent is
entitled to summary judgment on the petitioner’s claims of due
process violations at his plea and sentencing proceeding.
2. Probation conditions.
The petitioner brings two claims based on the conditions of
9
Although there is clearly defined Supreme Court precedent
with respect to the due process requirements for a guilty plea,
the particular issue the petitioner raises, involuntariness due
to pressure from his counsel, does not appear to have been
reduced to a specific rule. See O’Brien, 145 F.3d at 2 5 . For
that reason, following the “unreasonable application” prong of
the § 2254(d)(1) test, the court also considered the Supreme
Court’s precedent as to voluntariness as well as more factually
specific interpretations of the voluntariness requirement from
other federal courts.
24
his probation. He argues that the state court violated his right
to due process by permitting the probation department to impose
conditions of probation that were not part of the sentence or the
plea agreement. He also argues that the state court violated his
right to due process by not enforcing its order clarifying his
sentence to require the probation department to adhere to the
conditions of probation under the sentence.
Supreme Court precedent requires the state to adhere to the
promises made in securing a plea agreement. See Santobello v .
New York, 404 U.S. 257, 262 (1971); see also Mabry v . Johnson,
467 U.S. 5 0 4 , 510-11 (1984). In this case, the state court
granted the petitioner’s motion to clarify his sentence, and
ordered that the petitioner was subject to “regular and not
intensive probationary supervision.” Order, 91-S-1831, 92-S-
1280, 92-S 1541-1542, May 2 7 , 1993, at 3 . The state court
judgment, therefore, imposed the terms of the plea agreement as
the petitioner requested.
If the petitioner argues that the probation department
failed to comply with the judgment, that claim does not raise an
actionable basis for habeas relief, since Federal habeas relief
is limited to one who is “in custody pursuant to the judgment of
a State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United
States.” § 2254(a). C f . Sandin v . Connor, 515 U.S. 472, 482-84
25
(1995) (discussing due process requirements for conditions of
confinement in context of civil rights action). In addition, the
petitioner is no longer subject to the judgment imposing the
suspended sentence and probation, which has been vacated, but
instead is now serving sentences that were imposed as the result
of the violations of the conditions of his probation after he
entered a plea of true to the probation violations. Therefore,
the petitioner’s challenges to the conditions of his probation
are not cognizable grounds for habeas relief in this case.
The petitioner also seeks habeas relief from his current
incarceration on the grounds that he is now serving prison
sentences because of intensive probation conditions, imposed by
the state probation department, that were not part of his plea
agreement or his sentence. The record, however, does not support
his claim. In response to the petitioner’s motion, the court
clarified the conditions of his probation as “regular” instead of
the “intensive” conditions imposed by the probation department.
In the state habeas order, the state court forthrightly
acknowledged that the petitioner “is correct when he argues that
he was wrongfully placed on intensive probation after his plea
and sentencing.”10 State Habeas Order at 1 0 . The state court
10
The respondent’s argument that the issue of the conditions
of the petitioner’s probation was not exhausted is meritless. As
the petitioner points out, the issue was addressed in the state
habeas proceeding, which was appealed to the New Hampshire
26
wrote, “[h]ad the court refused to grant his Motion to Clarify
Sentence and removed [sic] his intensive probation status, then
Mr. Plumer’s Petition for Writ of Habeas Corpus might have
merit.” Id. at 1 1 .
The petitioner also contends that the conditions of his
probation did not change after the state court clarified his
sentence and that the charged probation violations were the
result of a continuation of the intensive conditions. The state
court found, however, that the petitioner not only violated the
more intensive conditions imposed by the probation department,
but also violated the conditions that he understood ordinarily
applied to probation including no excessive use of alcohol,
permission required to leave the state, and attending meetings
with his probation officer. The state court’s factual findings
are presumed correct and are also amply supported by the record
of the probation violation proceeding and the state habeas
proceeding. Therefore, the petitioner cannot show that he is in
custody due to state court adjudications that were contrary to or
an unreasonable application of Supreme Court precedent.
3. Sentence following probation revocation.
The petitioner claims that his right to due process was
violated by the state court’s decision to revoke his probation
Supreme Court.
27
and impose the full sentences, which were initially suspended, in
response to his probation violations. He argues that his
“technical” parole violations, that is drinking, leaving the
state without permission, and missing a meeting with his
probation officer, did not warrant the severe sanction of
revocation of his probation.
Due process affords certain procedural protections before
probation may be revoked. See Gagnon v . Scarpelli, 411 U.S. 778,
786 (1973) (applying the standards of Morrissey v . Brewer,
408
U.S. 471 (1972) to probation revocation proceedings). “To revoke
probation the sentencing court must make both a retrospective
determination that the probationer has violated a condition of
his probation, and a discretionary, prospective determination
that any violation(s) warrants revocation.” United States v .
DiIanni,
87 F.3d 1 5 , 16 (1st Cir. 1996) (citing Black v . Romano,
471 U.S. 606, 611 (1985)). “The decision to revoke probation is
generally predictive and subjective in nature, and the fairness
guaranteed by due process does not require a reviewing court to
second-guess the factfinder’s discretionary decision as to the
appropriate sanction.” Black,
471 U.S. at 613 (citation
omitted).
In this case, the petitioner, who was represented by
counsel, entered a plea of true to the charged violations of the
terms of his probation. The retrospective prong of the due
28
process analysis for probation violation proceedings was
satisfied by the plea. The state court then decided that the
appropriate sanction was to revoke the petitioner’s probation and
impose the sentences that previously had been suspended. In
making the decision, Judge McHugh explained that he had never
been comfortable with the recommended suspended sentences because
of the heinous nature of the crimes charged, but that he accepted
the recommended sentences based on his acquiescence in the plea
agreement system.
Judge McHugh reminded the petitioner that he had been
specifically warned during the sentencing that he was at risk of
serving the full sentences if he violated the terms of his
probation. Judge McHugh then said, “You have pled guilty to a
violation of the conditions of your probation and I am going to
uphold the State’s recommendation and do justice, which wasn’t
done nine months ago. It’s going to be done today.” Probation
violation transcript at 4 2 . Judge McHugh vacated the suspended
sentences and sentenced the petitioner to the full time for the
burglary charge to be served concurrently with the sentence for
the kidnaping charge.11 Judge McHugh also imposed a condition
that the petitioner participate in the sexual offender program at
11
The sentence was later vacated and he was resentenced to
reflect the individual sentences for kidnaping and burglary,
stand committed, to be served concurrently.
29
the prison.
Despite the petitioner’s negative interpretation of Judge
McHugh’s statement about justice being done, the remarks imply
nothing more than the court’s subjective and predictive
evaluation of the petitioner’s circumstances in light of both the
probation violations and the crimes of which he was convicted
through his guilty pleas. See Black, 471 U.S. at 613; see also
United States v . Morin,
889 F.2d 328, 332 (1st Cir. 1989). The
petitioner was afforded the due process required at probation
violation hearings under applicable Supreme Court precedent. The
state court’s decision to revoke probation and to impose the
sentences, which had previously been suspended, is neither
contrary to nor an unreasonable application of Supreme Court
precedent pertaining to the due process considerations in
probation revocation proceedings.
Conclusion
For the foregoing reasons, the respondent’s motion for
summary judgment (document n o . 22) is granted. The clerk of
court shall enter judgment accordingly and close the case.
SO ORDERED.
Joseph A . DiClerico, Jr.
District Judge
30
March 2 1 , 2000
cc: Joseph W . Plumer, pro se
Walter L. Maroney, Esquire
31
